151 F.

3d 172
77 Fair Empl.Prac.Cas. (BNA) 1017,
73 Empl. Prac. Dec. P 45,427, 128 Ed. Law Rep. 588

Kathryn O. REINHOLD, Plaintiff-Appellee,

v.
COMMONWEALTH OF VIRGINIA; Virginia School for the
Deaf and
Blind, Defendants-Appellants.
No. 96-2816.

United States Court of Appeals,

Fourth Circuit.
Argued Oct. 29, 1997.
Decided Aug. 4, 1998.

ARGUED: Guy Winston Horsley, Jr., Senior Assistant Attorney General,

Office of the Attorney General, Richmond, Virginia, for Appellants.
Harris Dewey Butler, III, Butler, Macon, Williams, Pantele & Lowndes,
P.C., Richmond, Virginia, for Appellee. ON BRIEF: James S. Gilmore,
III, Attorney General of Virginia, Catherine C. Hammond, Deputy
Attorney General, Office of the Attorney General, Richmond, Virginia,
for Appellants. Thomas L. Kemp, Kemp & Kemp, P.A., Elkton,
Maryland, for Appellee.
Before MURNAGHAN, NIEMEYER, and HAMILTON, Circuit Judges.

Vacated and remanded by published opinion. Opinion, 135 F.3d 920,

superseded. Judge HAMILTON wrote the opinion, in which Judge
MURNAGHAN and Judge NIEMEYER joined.

ORDER
2

The petitions for rehearing filed by all parties to this appeal, Appellants
Virginia School for the Deaf and Blind (VSDB) and the Commonwealth of
Virginia (the Commonwealth) and Appellee Kathryn Reinhold, are granted.
The opinion issued on February 6, 1998, Reinhold v. Commonwealth of Va.,

135 F.3d 920 (4th Cir.1998), is withdrawn.

OPINION
HAMILTON, Circuit Judge:
3

The Commonwealth and VSDB (collectively, the Appellants) appeal the

district court's denial of their renewed motion for judgment as a matter of law as
to Reinhold's claim of sexual harassment in violation of Title VII of the Civil
Rights Act of 1964. See 42 U.S.C. 2000e-2(a)(1). The Appellants argue that
the district court erred when it denied their motion following a jury verdict in
Reinhold's favor. In light of the Supreme Court's recent decisions in Faragher v.
City of Boca Raton, --- U.S. ----, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and
Burlington Indus., Inc. v. Ellerth, --- U.S. ----, 118 S.Ct. 2257, 141 L.Ed.2d 633
(1998), we vacate the district court's judgment and remand for further
proceedings consistent with this opinion.

I.
4

The Appellants appeal the district court's denial of their renewed motion for
judgment as a matter of law. Therefore, we consider the evidence presented at
trial in the light most favorable to Reinhold, the nonmoving party. See Price v.
City of Charlotte, 93 F.3d 1241, 1249 (4th Cir.1996), cert. denied, --- U.S. ----,
117 S.Ct. 1246, 137 L.Ed.2d 328 (1997).

Our now vacated opinion, issued on February 6, 1998, see Reinhold v.

Commonwealth of Va., 135 F.3d 920 (4th Cir.1998), contains an exhaustive
recitation of the facts pertinent to this appeal. We incorporate the statement of
the facts contained in that opinion and include here only a brief synopsis.

Reinhold was employed as a school psychologist at VSDB in Hampton,

Virginia, from August 23, 1990 to April 16, 1992. Reinhold alleges that
beginning in late July or early August 1991 and lasting until at least late
February 1992 she was subject to unwelcome sexual advances from her
supervisor at VSDB, Dennis Martin, and that Martin's conduct constituted
sexual harassment in violation of Title VII.

On January 31, 1996, Reinhold filed this suit against the Appellants in the
United States District Court for the Eastern District of Virginia, alleging that
Martin had sexually harassed her and that she had been retaliated against for
complaining about that harassment, both in violation of Title VII of the 1964

Civil Rights Act. See 42 U.S.C. 2000e-2(a)(1), 2000e-3(a). Specifically,

Reinhold alleged that she had been the victim of both quid pro quo sexual
harassment and a hostile work environment based on sex. Reinhold alleged
further that the Appellants were liable for Martin's conduct.
8

On October 28 and 29, 1996, the case was tried before a jury. The Appellants
moved for judgment as a matter of law under Federal Rule of Civil Procedure
50(a) following the close of Reinhold's evidence and following the close of all
of the evidence. Both motions were denied, and the case was submitted to the
jury. The jury returned a verdict in favor of Reinhold on both counts of sexual
harassment--hostile work environment sexual harassment and quid pro quo
sexual harassment--and awarded her $85,000 in compensatory damages. The
jury found against Reinhold on her retaliation claim.

On October 31, 1996, the district court entered judgment in favor of Reinhold
on her sexual harassment claims and in favor of the Appellants on her
retaliation claim. On November 7, 1996, the Appellants renewed their motion
for judgment as a matter of law under Federal Rule of Civil Procedure 50(b).
On December 13, 1996, the district court denied the Appellants' motion. The
Appellants noted a timely appeal.

10

On February 6, 1998, we issued an opinion affirming the district court's denial

of judgment as a matter of law as to Reinhold's claim of quid pro quo sexual
harassment but reversing the district court's denial of Appellants' motion as to
Reinhold's claim of hostile work environment sexual harassment. See
Reinhold, 135 F.3d at 920 (Niemeyer, J., dissenting in part). In our opinion, we
held that Appellants could not be held liable for any hostile work environment
created by Martin, because as soon as VSDB learned of the harassment, it took
adequate remedial action that resulted in the cessation of the offensive conduct.
See id. at 930-31. In so holding, we relied on prior precedent establishing that in
order for an employer to be held liable for a hostile work environment created
by a supervisor in violation of Title VII, the plaintiff must show that "the
employer knew or should have known of the illegal conduct and failed to take
prompt and adequate remedial action," Andrade v. Mayfair Management, Inc.,
88 F.3d 258, 261 (4th Cir.1996). See Reinhold, 135 F.3d at 929.

11

We also held in our February 6, 1998 opinion, with Judge Niemeyer dissenting,
that the district court properly denied Appellants' renewed motion for judgment
as a matter of law as to Reinhold's claim of quid pro quo sexual harassment
because Reinhold had established all of the elements necessary for such a
claim, including a tangible job detriment suffered as a result of her rejection of
Martin's sexual advances. See Reinhold, 135 F.3d at 932-34. In holding that

Reinhold had produced sufficient evidence to support a finding that she

suffered a "tangible job detriment," we rejected Appellants' argument that
Reinhold had not suffered a tangible job detriment because she had not suffered
an ultimate employment action, such as firing or demotion. See id. at 933.
Rather, relying on the definition of "tangible job detriment" contained in
Spencer v. General Elec. Co., 894 F.2d 651, 658 (4th Cir.1990), and the EEOC
Guidelines, see 29 C.F.R. 1604.11(a)(2) (1996), we held that Reinhold's
evidence that Martin assigned her extra work, gave her inappropriate work
assignments, and denied her the opportunity to attend a professional conference
constituted a "tangible job detriment" sufficient to support a claim of quid pro
quo sexual harassment. See Reinhold, 135 F.3d at 933-34.
12

Following the issuance of our opinion, both Reinhold and Appellants filed
petitions for rehearing with suggestions for rehearing en banc. While these
petitions were pending in this court, the Supreme Court issued its opinions in
Faragher and Ellerth. We now consider the impact of these decisions on this
case.

II.
13

In Faragher and Ellerth, the Supreme Court announced the appropriate

standards to be applied in determining whether an employer may be held liable
for a supervisor's sexually harassing conduct in violation of Title VII. First,
when a supervisor's sexual harassment of an employee culminates in a "tangible
employment action," such as discharge, demotion, or undesirable reassignment,
the employer is liable for the harassment, regardless of whether the employer
knew or should have known of the harassment and regardless of whether the
employer took remedial steps to end the harassment after learning of it. See
Faragher, 118 S.Ct. at 2292-93; Ellerth, 118 S.Ct. at 2270. The Court defined
"tangible employment action" in Ellerth as "a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits."
Ellerth, 118 S.Ct. at 2268-69. Although a "tangible employment action" may
not always involve economic harm, the Court stated in Ellerth that "[a] tangible
employment action in most cases inflicts direct economic harm." Id.

14

Second, where the employee does not suffer a tangible employment action, but
rather suffers an actionable hostile environment based on sex, the employer is
still vicariously liable for the hostile environment created by its supervisor,
unless the employer can prove by a preponderance of the evidence: (1) that the
employer exercised reasonable care to prevent and correct promptly any
sexually harassing behavior; and (2) that the employee "unreasonably failed to

take advantage of any preventive or corrective opportunities provided by the

employer to avoid harm." Id. 118 S.Ct. at 2270. With respect to the first prong
of this affirmative defense, the Court stated in Ellerth that proof that the
employer had promulgated an anti-harassment policy with a complaint
procedure was not necessary in every instance as a matter of law. See id.
However, in Faragher, the Court held the defendant employer's policy
ineffective as a matter of law where: (a) the policy did not include any
mechanism by which the employee could bypass the harassing supervisor when
lodging a complaint; and (b) the employer was the City of Boca Raton, Florida
and "those responsible for city operations could not reasonably have thought
that precautions against [sexually] hostile environments in any one of many
departments in far-flung locations could be effective without communicating
some formal policy against harassment." Faragher, 118 S.Ct. at 2293-94.
15

In this case, Reinhold's evidence does not support the conclusion that she
suffered a "tangible employment action" sufficient to give rise to the automatic
imputation of liability against Appellants for Martin's actions. As the Supreme
Court made clear in Ellerth, a "tangible employment action" requires "a
significant change in employment status." Ellerth, 118 S.Ct. at 2268-69
(emphasis added). While Reinhold alleges that she was assigned extra work and
suffered other harm as a result of her rejection of Martin's sexual advances, she
does not allege that she experienced a change in her employment status akin to a
demotion or a reassignment entailing significantly different job responsibilities.

16

The next question, then, is whether Reinhold produced sufficient evidence

from which a reasonable jury could conclude that she was the victim of a
severe and pervasive hostile work environment. In Faragher, the Supreme
Court reaffirmed its previously articulated standard for determining when a
plaintiff has established a hostile work environment in violation of Title VII,
stating that a plaintiff must establish that the environment was "both
objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so."
Faragher, 118 S.Ct. at 2283-84 (citing Harris v. Forklift Systems, Inc., 510 U.S.
17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). In this case, Reinhold
produced evidence that Martin repeatedly tried to kiss her; recited a poem
about the first time he masturbated; gave her "pills" containing sexually explicit
messages; used meetings alone with her to tell her that he could not control his
feelings for her, felt like grabbing her all day, and could not take his eyes off of
her; threatened her with suspension and extra work assignments if she
continued to refuse his advances; gave her a collection of erotic poetry, entitled
"Rein's Hold--A Story of the Heart," which included explicit sexual passages;
and assigned her extra and inappropriate work assignments that were not

included in her job description. See Reinhold, 135 F.3d at 924-26. On appeal,
Appellants concede that Reinhold "was subjected to a hostile work environment
because of her sex" (Appellants' Br. at 19); they challenge only whether they
may properly be held liable for the hostile work environment created by
Martin. Therefore, we need not decide whether Reinhold's evidence is
sufficient to support a finding that she was subjected to a hostile work
environment based on her sex, and we express no opinion on this issue.
17

Finally, then, the question becomes whether Appellants can avoid liability for
Martin's conduct by proving by a preponderance of the evidence (1) that they
exercised reasonable care to prevent and correct promptly Martin's sexually
harassing behavior, and (2) that Reinhold unreasonably failed to avail herself of
any preventive or corrective opportunities. See Faragher, 118 S.Ct. at 2292-93;
Ellerth, 118 S.Ct. at 2270. Because the promulgation of an effective policy
against sexual harassment by the Appellants and the reasonableness of
Reinhold's actions in light of her employer's policies were not at issue in the
district court, there appears to be scant evidence in the record on these points. It
is undisputed that Reinhold did not complain to a school official about the
harassment until March 9, 1992 and, following prompt remedial action by
VSDB, Martin did not harass her again. However, there is little evidence as to
the existence of a policy against sexual harassment and, in particular, as to
whether such policy could properly be deemed to contain an effective
complaint procedure or to evidence the exercise of reasonable care on the part
of VSDB and the Commonwealth.

III.
18

We, therefore, conclude that this record is insufficient to enable us to decide

this appeal in light of the standard for employer liability in sexual harassment
cases announced by the Supreme Court in Faragher and Ellerth. Specifically,
whether the judgment in favor of Reinhold is proper depends on Appellants'
ability to establish the affirmative defense, thereby avoiding liability for
Martin's conduct, as articulated by the Supreme Court in Faragher and Ellerth.
We are, therefore, constrained to grant the parties' petitions for rehearing,
withdraw our February 6, 1998 opinion, vacate the district court's judgment in
favor of Reinhold on her sexual harassment claims, and remand this case to the
district court for further proceedings consistent with this opinion.

19

VACATED AND REMANDED.